NOT PRECEDENTIAL UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT

__________ No. 1 1

- 3220

___________ ISIDRO FLORES TEXIDOR, JR., Appellant

v. LOUIS S. FOLINO, Superintendent, SCI Greene; ATTORNEY GENERAL OF THE STATE OF PENNSYLVANIA; SCHUYLKILL COUNTY DISTRICT ATTORNEY

______________ ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF PENNSYLVANIA (D.C. Civ. Action No

. 4

- 10

- cv - 0 1884 ) District Judge: Honorable William W. Caldwell

______________ Submitted Under Third Circuit LAR 34.1(a) June 2 4 , 2014

______________ Before: FUENTES, GREENAWAY, JR., NYGAARD, Circuit Judges

. (Opinion Filed: August 5 , 2014 )

______________ OPINION

______________

GREENAWAY, JR., Circuit Judge

.2 Isidro Flores Texid or , Jr. (“Texidor”) appeal s from an order entered by the D istrict
C ourt denying his petition for a writ of habeas corpus. For the reasons discussed below, we will affirm the order and deny Texidor ’s request for habeas corpus relief.

I. F ACTUAL B ACKGROUND Because we write primarily for the parties who are familiar with the facts and procedural history, we recount only the essential facts. On January 10, 2004, at approximately 2:30 am, Christine Pribish (“Pribish”), Ryan Winkler (“Winkler”), Christine G earhart (“Gearhart”) , Gearhart’s three children, and a man named Maurice were at Gearhart’s residence in Shenandoah, Penns ylvania. While Gearhart and Maurice were asleep upstairs and Gearhart’s children were asleep in the living room, there was a knock at the door. Pribish, who was in the kitchen with Winkler, approached the door and was told “Man” 1 was at the door. Pribish awoke Gearhart upstairs, who then went downstairs and opened the door. Once the door was opened, Nazaniel Flores (“Flores”) and Dav id Ortega, Jr. (“Ortega”), with Texidor, pushed their way into the residence. Once inside, Texidor immediately placed Gearhart into a headlock and put a gun to her head. Gearhart and Pribish were then directed into the kitchen and told to sit on the floo r. Flores brought Winkler, who had previously gone upstairs, back to the kitchen and told him to lie on the floor, while Flores placed his foot on the back of Winkler’s head.

1 Gearhart knew Nazaniel Flores as “Man” from prior drug related transactions.3 Ortega tied Pribish’s hands with duct tape and attempted to do the same with Gearhart, but she refused. Texidor then held a gun to Gearhart’s head, to persuade her to comply, but when she refused again, Texidor hit her in the head with his gun. After this, Gearhart consented to be tied. Once Gearhart, Pribish, and Winkler were secured in the kitchen, Texidor and Flores proceeded upstairs. Gearhart testified to hearing a strug gle upstairs and then a gunshot. It was later determined that the bullet lodged itself in the coach where one of Gearhart’s child ren were sleeping. Beca use the child screamed, Gearhart chewed through the duct tape around her hands, checked on her child, and then proceeded upstairs. Once upstairs, Gearhart found Flores rummaging through her dresser drawers. When Texidor and Flores found no money or safe, Texidor, Flores, and Ortega departed the residence. Texidor was apprehended, tried before a jury, and found guilty of one count of robbery, three counts of aggravated assault , three counts of aggravated assault with a deadly weapon, three counts of simpl e assault, two counts of unlawful restraint, and criminal conspiracy. (App. 343

- 44.) T he Court of Common Pleas sentenced Texidor to an aggregate term of 198 to 396 months of imprisonment. (App. 406.) After he was sentenced, Texidor filed a pro se notic e of appeal to the Superior Court of Pennsylvania.
T he Superior Court affirmed Texidor’s judgment of sentence, and the Supreme Court of Pennsylvania denied Texidor’s petition for allowance of appeal

. Texidor filed a pro se Post Conviction Relief Act (“ PC RA ”) petition, which raised the issue of ineffective assistance of counsel. T he PCRA court denied Texidor’s petition, and the Superior Court4 of Pennsylvania affirmed

. Texidor filed a motion for allowance of appeal with the Pennsylvania Supreme Court, whi ch was also denied. On September 9, 2010, Texidor filed a petition for habeas relief in the District Court for the Middle District of Pennsylvania

. The District Court, largely adopting the Report and Recommendation of Magistrate Judge Martin Carlson, d enied the petition for habeas relief. T his Court granted a certificate of appealability on the question of “whether sufficient evidence in the trial record supports Texidor’s conviction of two counts of aggravated assault with a deadly weapon and two coun ts of aggravated assault against v ictims Pribish and Winkler.” (App. 4.)

II. J URISDICTION AND S TANDARD OF R EVIEW Texidor brought this action under 28 U.S.C. § 2254. We have jurisdiction under 28 U.S.C. §§ 1291 and 2253. On this appeal, we exercise plenary review over the District Court’s legal conclusions. See Alston v. Redman , 34 F.3d 1237, 1242 (3d Cir. 1994). Furthermore, “ inasmuch as the d istrict c ourt relied on the state court record in concluding that the evidence was insufficient to support the convictions, we will exercise plenary review of that conclusion. ” Orban v. Vaughn , 123 F.3d 727, 729 (3d Cir. 1997)

.

III. A NALYSIS Texidor seeks to have this Court vacate the judgment of sentence for his conviction of aggravated assault and aggrava ted assault with a deadly weapon against Winkler and Pribish. Texidor argues that he is entitled to re l i e f pursuant to 28 U.S.C.5 § 2254 because there was insufficient evidence produced at trial to establish the elements necessary for conviction under Penn sylvania law. 2

“ The evidence is sufficient to support a conviction whenever, ‘after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable do ubt.’” Parker v. Matthews , 132 S. Ct. 2148, 2152 (2012) (quoting Jackson v. Virginia, 443 U.S. 307, 319 (1979)). A state court decision rejecting a sufficiency challenge may not be overturned on federal habeas review unless the “decision was ‘objectively unreasonable.’ ” Cavazos v. Smith , 132 S. Ct. 2, 4 (2011) (quoting Renico v. Lett , 559 U.S. 766, 768 (2010)). On this appeal we determine “whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact cou ld have found the essential elements of the crime beyond a reasonable doubt.” See Jackson v. Virginia , 443 U.S. at 319. We must apply the above standard “with explicit reference to the substantive elements of the criminal offense as defined by state law. ” Id. at 324 n. 16. Under Pennsylvania l aw, a person is guilty of aggravated assault if he “attempts to cause serious bodily injury to another, or causes such injury intentionally, knowingly or recklessly under circumstances manifesting extreme indiffer enc e to the value of human

2 Appellees seek to have this Court exercise its discretion to decline to review three of the four counts on the theory that “‘ the defendant remains sentenced in any event

. 

### . . . ” (Appellee s’ Br. 5 (quoting Jones v. Zimmerman , 805 F.2d 1125, 1128 (3d Cir. 1986). ) Given the possibility that Texidor may suffer collateral consequences, we find it prudent to address the substantive iss ues surrounding all four claims and decline this invitation. See Jones v. Zimmerman , 805 F.2d at 1128 (“The fact that a defendant may possibly suffer collateral consequences, such as impaired parole eligibility, has been cited as an objection to use of th e practice.”).6 life . . . . ” 18 Pa. Cons. Stat. § 2702(a)(1 )

. Attempt of a criminal act is attributed to the person when “with intent to commit a specific crime, he does any act which constitutes a substantial step toward the commission of tha t crime.” 18 Pa. C ons . S tat

. § 901(a); see also Commonwealth v. Lopez , 654 A.2d 1150, 1154 (Pa. Super. 1995) (stating that attempt is established “when the accused intentionally acts in a manner which constitutes a substantial or significant step towards pe rpetrating serious bodily injury.”). Pennsylvania courts have employed “a totality of the circumstances test, to be used on a

case - by

- case basis, to determine whether a defendant possessed the intent to inflict serious bodily injury.” Commonwealth v. Mat thew , 909 A.2d 1254, 1257 ( Pa. 2006 ). Here, the record shows that there was sufficient evidence presented at trial to enable the jury to conclude that Texidor had the requisite intent to inflict injury upon Winkler and Pribish . As to Winkler, Texidor hel d the gun to Winkler’s head while his accomplice held him down with his foot on Winkler’s neck. ( See App. 335 (“We understand that Appellant did not inflict actual bodily injury to Winkler. However, Appellant did hold the weapon to Winkler’s head while F lores held the victim down with his foot on Winkler’s neck.” ).)

. Pribish was directed to get on the floor, and had her hands tied down with duct tape. Gearhart was merely ten feet away from Pribish when Gearhart’s refusal to get her hands tape d le d to Te xidor “pistol

- whipp[ing]” her. ( See App. 425

- 26, 440

. ) The se circumstances conform to the kinds of cases in which Pennsylvania courts have found that defendants had the state of mind required to be guilty of aggravated assault. See Commonwealth v. Matt hew , 909 A.2d 1254, 1259 ( Pa. 2006) (“Regarding the attempt element, there was sufficient evidence for the fact

- finder7 to conclude appellant took a substantial step towards inflicting serious bodily injury since he pushed a loaded gun against Wachter’s thr oat

. . . . ”) ; see also Commonwealth v. Daniels , 354 A.2d 538 ( Pa. 1976) (defendant fired a gun into crowd killing one man and injuring another); Commonwealth v. Laing , 456 A.2d 204 ( Pa. Super. 1983) (defendant drove car into a crowd after having aimed it at one individual and then hit two people).
E vidence presented at trial was also sufficient to sustain Texidor’s conviction for aggravated assault with a deadly weapon against Pribish and Winkler. Under Pennsylvania law, a person is guilty of aggravated a ssault with a deadly weapon when he “attempts to cause or intentionally or knowingly causes bodily injury to another with a deadly weapon . . . .” 18 Pa. Cons. Stat. § 2702 (a) (4)

. The Pennsylvania statute defines deadly weapon to include “[a]ny firearm, whether loaded or unloaded . . . .” 18 Pa. Cons.
Stat. § 2301. The record here is abundantly clear that Texidor possessed a firearm during the break

- in , and fired it in the presence of children. ( See App. 428 (“I heard a loud bang, and my daughter screa med Mommy, and I just jumped and I looked at Christine [Pribish] and I said that was a gunshot, wasn’t it, and she said yea. And I wept running to my daughter.”); App. 429 (“The bullet was lodged in the back of the couch . . . that [Gearhart’s] daughter h ad been sleeping on . . . .”).) Under these factual circumstances , a rational jury could have found that Texidor attempted to cause bodily injury with a deadly weapon to Winkler and Pribish. See Cavazos v. Smith , 132 S. Ct. at 4 ( “ [I] t is the responsibil ity of the jury

— not the court

— to decide what conclusions should be drawn from evidence admitted at trial. ” ).8 Therefore , we find that the evidence was sufficient to sustain the four convictions of Texidor.

IV. C ONCLUSION For the foregoing reasons, we will affirm the order of the District Court.